United States District Court, D. Delaware
TUESDAY S. BANNER, Plaintiff,
GENELLE FLETCHER, Defendant.
Tuesday S. Banner, New Castle, Delaware, Pro Se Plaintiff.
Anne Kingery Jaros2, Deputy Attorney General, Delaware
Department of Justice, Wilmington, Delaware. Counsel for
U.S. DISTRICT JUDGE:
Tuesday S. Banner. ("Plaintiff) proceeds pro se
and was granted leave to proceed in formapauperis.
She filed this action pursuant to 42 U.S.C. § 1983,
alleging retaliation for filing an anti-discrirnination
claim, and has amended several times to allege violations of
the Family Medical Leave Act, 29 U.S.C. § 2601 et
seq. ("FMLA"), the Americans with Disabilities
Act of 1990, 42 U.S.C. § 12101 et seq.
("ADA"), and Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. ("Title
VII"). (D.I. 2, 6, 33) The matter proceeds on the Third
Amended Complaint and the only claim that remains arises
under the FMLA. [See DI. 57, 58) Pending is
Plaintiffs request for joinder of defendants, construed as a
motion for leave to amend, and her motion to stay discovery.
(D.I. 62, 72) For the reasons that follow, the Court will
deny the motion for leave to amend and will deny as moot the
motion to stay discovery.
Third Amended Complaint alleges wrongful acts occurring
December 2, 2009 to December 31, 2014 that resulted in the
termination of Plaintiff s employment. On March 17, 2017, the
Court dismissed the Second Amended Complaint and gave
Plaintiff leave to amend only as to FMLA
claims against Defendant Genelle Fletcher
("Defendant"). (D.I. 46, 47) In allowing Plaintiff
to amend, the Court stated, "This is Plaintiffs final
opportunity to amend." (D.I. 46 at V)
accordance with the order, Plaintiff filed a Third Amended
Complaint on April 12, 2017. (D.I. 49) Defendant moved to
dismiss and, on March 19, 2018, the Court granted in part and
denied in part the motion. (D.I. 57, 58) The matter proceeds
on the FMLA claims against Defendant in her individual
capacity. (D.I. 57 at V) All other claims are dismissed.
April 25, 2018, the Court issued a scheduling order, setting
a May 25, 2018 deadline to join other parties and amend
pleadings and a discovery deadline of December 21, 2018.
(D.I. 60) On May 25, 2018, Plaintiff filed a motion for
joinder, construed as a motion to amend. (D.I. 62) A proposed
fourth amended complaint seeks to reinstate previously
dismissed defendants and claims and seeks to add a new
defendant. (D.I. 62-1) Defendant opposes. On October 26,
2018, Plaintiff filed a motion to stay discovery pending
disposition of her motion to amend or to extend discovery
deadlines. (D.I. 72) Defendant does not oppose the motion to
stay discovery provided that the dispositive motion deadline
is adjusted in kind. (D.I. 73) On December 13, 2018, the
Court entered an order that extended the discovery deadline
and the dispositive motion deadline. (See D.I. 76)
REQUEST FOR JOINDER/MOTION TO AMEND
to Fed.R.Civ.P. 15(a)(2), courts "should freely give
leave [to amend] when justice so requires." However,
"undue delay, bad faith, dilatory motive, prejudice,
[or] futility" could all "justify a denial of leave
to amend." Shane v. Fauver, 213 F.3d 113, 115
(3d Or. 2000). "'Futility' means that the
complaint, as amended, would fail to state a claim upon which
relief could be granted" under the standard of Federal
Rule of Civil Procedure 12(b)(6). Lejon-Twin El v.
Marino, 722 Fed.Appx. 262, 265 (3d Or. Jan. 8, 2018)
(quoting Shane, 213 F.3d at 115). In evaluating
whether a plaintiff has stated a claim upon which relief
could be granted, the court accepts "all factual
allegations as true, construes the complaint in the light
most favorable to the plaintiff, and determines whether,
under any reasonable reading of the complaint, the plaintiff
may be entitled to relief." Bronowk v.
Allegheny Cty., 804 F.3d 338, 344 (3d Cir. 2015)
(internal quotation marks omitted).
seems that Plaintiff seeks to join parties or amend in
reliance on the April 25, 2018 scheduling order, which gave
the parties a May 25, 2018 deadline to join parties or amend
pleadings.Plaintiff seeks to reinstate previously-dismissed
defendants and to add a new defendant. She seeks to amend,
under the guise of joinder, "in the interest of justice
and convenience to the Court and all parties to this
litigation." (D.I. 62)
has been given numerous opportunities to amend her pleadings
to correct pleading deficiencies. Each time, the Court
explained why certain Defendants and claims against them were
subject to dismissal. The Court sees no need to reiterate its
analysis. Nor is it required to give Plaintiff leave to amend
once again. Indeed, the Court advised Plaintiff on March 17,
2017, she was being given a final opportunity to amend, which
she subsequently did on April 12, 2017. The deadline provided
in the April 25, 2018 scheduling order did not erase all of
this history or the Court's previous holdings.
event, a review of Plaintiff s filings indicates that
amendment is futile. It is well-settled that the Court may
deny a request for leave to amend where there is
"repeated failure to cure deficiencies by amendments
previously allowed" the latest proposed ...